Photo of William J. Birnes from the UFO Hunters series.

📯 May 1, 2017

A Law Day Note

My (very) short stint in law enforcement.

My (very) short stint in law enforcement as a security guard for the William J. Burns (no relation) Detective Agency, NYC.

Today is Law Day. The president signed a proclamation acknowledging Law Day, a day in which Americans look around in appreciation that we are a society of laws – not simply of regulations – but laws that protect our basic rights and guarantee justice as a remedy for wrongs. Sometimes we disagree with the interpretation of laws and sometimes we agree with them. But, regardless, each and every person living in America has the basic right to walk into court, have his or her day in court, to argue for justice.

When my law school put out a call to alumni to submit papers on an aspect of law, the Fourteenth Amendment’s application of the Bill of Rights, initially only applied to the federal government, I wrote about how the first amendment, the protection of free speech, second amendment, the right to keep and bear arms, and the fourth, fifth, and sixth amendments , all having to do with rights protecting against arbitrary search and seizure, the right to due process of law, and the right to be represented by an attorney at hearings all apply to the states in specific cases. Here is that law note.

The Constitution and the Mentally Ill: A Balancing of Rights

As reported in the Federal Register (Vol. 81, No. 243, December 19, 2016), an executive order was set forth directing the Social Security Administration (20 CFR Part 421 [Docket No. SSA–2016–0011] RIN 0960–AH95) to provide “relevant records” to the Attorney General for inclusion in the National Instant Criminal Background Check System (NICS) for the purposes of identifying those receiving Disability Insurance on the basis of a qualifying mental illness. The qualifying mental illness must be one that renders the individual unable to manage his or her own affairs or one who has been adjudged to be mentally ill with a propensity for dangerousness to self and others so as to preclude those so identified from purchasing a firearm. That executive order was rolled back by a House of Representatives vote shortly after the new Trump administration took office, and the result was an outcry, but not along the usual partisan lines.

In critical responses by what otherwise might be deemed strange political bedfellows, both the National Rifle Association and the American Civil Liberties Union opposed the Obama executive order, both of them on Constitutional grounds. The NRA argued that the rule violated an individual’s Second Amendment rights while the ACLU argued that it was unconstitutional for the executive branch to act summarily as prosecutor, judge, and jury to deprive individuals so identified of their Second, Fourth, Fifth, and Sixth Amendment rights, thus setting up an apparent conflict among the different constitutional protections and raising multiple issues: Does the Second Amendment’s prohibition against government’s infringement upon an individual’s right to keep and bear arms trump (a) the government’s obligation to provide for the general welfare and the states’ sovereign police powers, and (b) an individual’s right to due process of law when one agency of government summarily acts in a legislative and judiciary role?

Although on its face, it seemed as if the House were giving guns to the dangerously mentally ill, the real argument involved the reach of executive agencies into the Bill of Rights so as to modify and restrict their application to certain individuals. Had not the House rolled back the executive order, this issue would have most likely reached the U.S. Supreme Court for a resolution.

Docs versus Glocks

In a corollary controversy, Florida in 2011 enacted into law the Firearms Owners’ Privacy Act (Fla. Stat. §§ 790.338, 456.072, 395.1055, & 381.026) (FOPA), which raised a prima facie issue before the federal court in the Eleventh Circuit as to whether an individual’s First Amendment right to free speech has a greater weight than an individual’s Second Amendment right to keep and bear arms. This was a case, whose ruling was published on February 16, 2017, dubbed “Docs v. Glocks” by the press.

The FOPA restricted doctors, and healthcare professionals in general, from asking their patients or clients about firearms in their homes unless, very specifically and in “good faith,” that a question about a patient’s or patient’s family’s gun ownership was “relevant” to the patient’s or family’s safety or care. The intent of the NRA supported legislation, the opposition argued, was really to prevent family practice physicians and pediatricians from discussing gun safety with families and so raised the issue of a potential conflict between the First Amendment’s right to free speech against the Second Amendment’s right to keep and bear arms, both of which apply to the states under the Fourteenth Amendment. But, as vehemently as the FOPA’s supporters argued that Florida had the authority to regulate healthcare within its borders and to guarantee that medical practices not violate the individual’s Second Amendment guarantees, the Eleventh Circuit did not see it that way. The court held in an 8-3 decision, overturning an earlier holding of that court’s three-judge panel, that insofar as the FOPA restricted a doctor’s or healthcare practitioner’s inquiry about firearms in the home, that restriction amounted to content-related speech, thus requiring the strictest standard of analysis, and its restriction was violative of the First Amendment’s free speech clause. On its face, though, the decision, albeit on First Amendment grounds, also advocated for the prerogatives of medical practitioners to protect the health and safety of their patients by separating the claim of an “infringement” under the Second Amendment from a content-based infringement under the First Amendment, thus using a Constitutional basis to skirt the issue of a state’s regulation of the advice given to patients by physicians.

The Lessard Case

In another case, the federal court in Wisconsin held that even an individual who may be deemed mentally ill according to the opinion of a healthcare professional, nevertheless does not surrender his or her Constitutional protections of due process. This was the Lessard case in Milwaukee, Wisconsin (LESSARD V. SCHMIDT 349 F. SUPP. 1078 (E.D. WIS. 972), VACATED AND REMANDED, 414 U.S. 473, ON REMAND, 379 F. SUPP. 1376 (E.D. WIS. 1974), VACATED AND REMANDED, 421 U.S. 957 (1975), REINSTATED, 413 F. SUPP. 1318 (E.D. WIS. 1976), in which the federal judiciary, while setting aside Wisconsin’s involuntary commitment law held, in essence, that there was no such thing as mental illness and set a new standard for “dangerousness.” It held that commitment required a finding that “there is an extreme likelihood that if the person is not confined he will do immediate harm to himself or others.” In so doing, the federal court required that an individual facing a hearing for involuntary commitment be afforded the same Constitutional rights afforded to a criminal defendant including, but not limited to, Fourth Amendment protections again search and seizure, Fifth Amendment guarantees of due process, and Sixth Amendment guarantees of right to counsel. Included in this package of rights was also the right to remain silent in the face of an inquiry into an individual’s mental health, which was, in essence, a Miranda protection to the suspected mentally ill individual, along with an exclusion of hearsay evidence. The court believed that mental illness was simply a label enabling psychiatrists to “shoehorn” certain people into medical diagnosis to “line their pockets” with fees based on The American Psychiatric Association’s diagnostic codes, the DSM manual (Liebert, John A., M.D. and William J. Birnes, Ph.D., Psychiatric Criminology, Boca Raton, FL.: CRC Press, 2017).

The Tarasoff Decision

Yet in another case, Tarasoff v. Regents of the University of California, (17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 [Cal. 1976]) the Supreme Court in California held that a mental health practitioner, in this case working for the University of California, had a duty to warn and a duty to protect a potential victim from a potential perpetrator of a violent crime, who posed a threat to the potential victim, even when disclosing that threat may be a violation of the doctor/patient privilege. Failure to warn or protect would make the practitioner liable for damages in negligence.

The justices in Tarasoff argued for common sense and ruled that clinicians have “Peculiar Ability,” meaning an ability singularly relevant to the expertise of clinicians, that enables them both to know what is the problem and how it will unfold. They held that victim Tatania Tarasoff would likely be killed by patient, Prosenjit Poddar, and, like contagious diseases, such knowledge demands control, for which “psychotherapists,” like doctors diagnosing infections, have the power to do.

The Lessard and Tarasoff cases are not mutually incompatible because both cases at core deal with the Constitutional rights of the mentally ill and those likely to be harmed by a mentally ill individual. Lessard held that just because of a mental illness, an individual does not forfeit his or her Constitutional rights and is guaranteed due process of law. Tarasoff holds that a mental health practitioner must use common sense judgment in weighing the danger his or patient may pose to another individual and, thus, has an absolute duty to warn and protect that individual. These cases, as well as the recent Wollschlaeger Docs v. Glocks case in Florida, demonstrate that the American criminal and civil justice systems are in the throes of a struggle to determine the nature of individual rights versus the rights of the public for protection from the dangerously mentally ill. Unfortunately, though, because of the closure of many state mental health institutions since the Reagan-era “mainstreaming” of the mentally ill, resulting in a cost-shifting from the public health budget to the states’ emergency services budgets, the full burden of dealing with the dangerously mentally ill has fallen upon law enforcement and first responders. We must wait to see whether the new administration and, in particular, the new Secretary of Health and Human Services can find a resolution to the plight of the mentally ill, including our military veterans suffering from PTSD.

Dr. William J. Birnes, J.D. ’06, is a New York Times bestselling author, a National Endowment for the Humanities Fellow, a literary agent, Chairman of the Board at Sunrise Community Counseling Center in Los Angeles, and was a writer/consulting producer for the History Channel.